How Does Fair Use Fit Into The Critique Of Copyright?

from the reclaiming-fair-use dept

Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the scene, and has become a sturdy tool for a wide range of creators and users. This transformation has been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same time, cultural studies scholars have showcased the relevance of fair use to their work, which often involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of English and visual art, librarians, makers of open course ware, poets, and dance archivists--have identified fair use as a necessary tool for them to use to achieve their missions. They have turned to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and representatives have appeared before the Copyright Office to testify about the way that the DMCA, which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they receive takedown notices on YouTube, they issue counter-takedown notices and explain why their uses are fair. Remixers have also gone before the Copyright Office to protest the way that the DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported them. Google, the Consumer Electronics Association, and the Computer and Communications Industry Association have all advocated for fair use. Legal and professional services for communities of practice, such as lawyers and web developers, have built their fair use expertise to serve their clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use. Between the scholars, the creators, artists, and organizations, fair use is emerging out of a twilight existence where, for decades, it had lived. During those decades, many professionals and especially professionals in the corporate media environment—whether broadcast journalism, cable documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their rights to be able to improve their work, lower their costs and start or grow new businesses. Some want to expand the sphere of freedom of expression, so that copyrighted culture does not become off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between owners’ rights and the society’s investment in new cultural creation. Some believe that fair use, exercised to the maximum, will provide concrete experience of the limitations of today’s copyright law, and point to more effective change. They all share a common understanding that individual and community action simply to assert their rights has an immediate and long-range effect on markets and policy.

The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S. and world-wide, critiquing the most stifling, confining features of copyright practice today. That discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly toward ownership rights, in a way that prejudices the health and growth of culture. This broader discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the public domain; and civil disobedience.

Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster” it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a range of tweaks to pull back the extent of copyright protection, such as limiting copyright length and dropping protection against the preparation of derivative work, so that less licensing is needed. Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.

Some people offer suggestions to improve the efficiency of licensing, which today is messy, clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or compulsory) licensing schemes, such those that allow today for the retransmission of TV signals by cable and satellite systems. Others have suggested new voluntary digital platforms through which users could make “micro-payments,” tiny payments for each individual access to copyrighted material offered commercially. Legal scholar William Fisher has proposed a voluntary collective administration system, akin to those that today enable public performances and broadcasts of music, and to collect licensing payments through Internet service providers and distribute them to copyright owners and artists whose material is used online. Some copyright owners, including the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.

The ideas and projects all respond to the real problem that copyright law now fits ever more poorly the way people are actually making culture. They may well take some time to become useful, though. The big stumbling block both to fundamental copyright reform and to licensing reform is that large copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on what they would like to do. They do not know what business models will be most relevant in a few years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to them than change that might have unanticipated downsides. As major stakeholders in any legislative reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until their interests shift with shifting business models. As major actors in licensing, they will collaborate on new methods of licensing when they understand how emerging business models favor their interests.

Another part of this broad copyright critique is a range of efforts to expand copyright-free and copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such as open source software (collaboratively created and freely offered software), open source (free and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely available curriculum materials) offer such alternative zones. The various Creative Commons licenses contribute to this alternative zone by offering a way for creators to give their work away more easily, although with conditions, by labelling it appropriately.

These efforts have indeed created significant copyright-light zones, as well as creating enormous enthusiasm for a more flexible copyright policy. They work well for people who want to give their work away and share it without economic reward. A pool of noncommercial works now exists, but it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News Corp will continue to copyright their holdings and treat them as assets. The existence of copyright- light zones, however large, does not address the frequent need that people have to access mass commercial culture to make new cultural expression.

Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the Yes Men, Adbusters magazine and others—position themselves on the margins of official culture, and see themselves as reclaiming culture one image or gesture at a time. They also see themselves as challenging the terms of long and strong copyright. Ironically, many times the uses they make of copyrighted material are actually completely legal fair uses.

This broad and diverse discourse calling for changes in long and strong copyright thus has many faces and approaches, each with opportunities and limitations. They add up to a broad public awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair use more useable stand out because they can be done now, by people in many walks of life; they can be publicized and celebrated, thus spreading the word; and because using this right expands its range of uses.

Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics. Some regard it as hopelessly compromised because of technologies such as encryption, which override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too much of the status quo, and that another copyright-free world is possible. One way that concern is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to accomplish our goals.

In fact, under the current interpretation, fair use does apply in a wide variety of situations. They range from making copies of TV programs on our DVRs to creating digitally annotated critical texts to making an archive of the worst music videos ever to making relevant curriculum digitally available to students. Fair use has evolved, having different functions at different moments in U.S. history. Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore copyright to its constitutional purpose, and the transformativeness standard assists in creating that value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open; vigorous exercise will not break fair use.

Fair use will continue to be important, no matter what the success of other aspects of long and strong copyright protests and proposals. Even if we could wave a magic wand and execute reform of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair use would still be an important tool to free up recent culture for referencing in new work. Even if licensing were much easier than it is today, it would never address all the needs people have for use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the copyrighted material existing outside those zones without permission or payment would still remain. Sometimes people need to use materials that the copyright owner simply will not license to them. Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be fun, although some culture jammers are actually just employing their fair use rights without knowing it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals or pirates, and don’t want to.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that evidence the poor fit between today's copyright policy and today's creative practices. In a world where the public domain has shrunk drastically, it creates a highly valuable, contextually defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy—not merely protection for owners but the nurturing of creativity, learning, expression. Asserting fair use rights and defending the rights of others to use them is a crucial part of constructing saner copyright policy.

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  1. icon
    The Logician (profile), 19 May 2012 @ 7:08am

    Ah, I was briefly out of character for a moment. However, my point stands.

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